No. 10-1119

,upreme ourt of niteb tate

THOMAS STEINBECK AND BLAKE SMYLE,

Petitioners,V.

MCINTOSH & OTIS, et al.,

Respondents.

On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The Second Circuit

BRIEF OF AMICI CURIAE GRAPHIC ARTISTSGUILD, AMERICAN SOCIETY OF MEDIAPHOTOGRAPHERS, NATIONAL PRESS

PHOTOGRAPHERS ASSOCIATION,SONGWRITERS GUILD OF AMERICA, FUTURE OFMUSIC COALITION, AMERICAN FEDERATION OF

MUSICIANS, SOCIETY OF CHILDREN’S BOOKWRITERS AND ILLUSTRATORS, THE AUTHORSGUILD, AND THE ARTISTS RIGHTS COALITION

IN SUPPORT OF PETITIONERS

ERACH F. SCREWVALACounsel of RecordSc REWVALA LLC244 Fifth Avenue, Suite #E-241New York, New York 10001(212) 252-2501erach@screwvalallc, com

COCKLE LAW BRIEF PRINTING CO. (8001 225-6964OR CALL COLLECT {402) 342-2831

8lank Page

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................iii

INTEREST OF AMICI CURIAE .........................1

Visual. Artists ....................................................1

Musicians and Songwriters ..............................3

Authors and Illustrators ..................................5

SUMMARY OF ARGUMENT ..............................6

ARGUMENT ........................................................8

I. THIS COURT SHOULD GRANT RE-VIEW TO RESOLVE AN IRRECONCIL-ABLE SPLIT BETWEEN THE SECONDAND NINTH CIRCUITS ON WHATCONSTITUTES AN "AGREEMENT TOTHE CONTRARY" UNDER SECTION304(c)(5) OF THE COPYRIGHT ACTTttAT HAS INTRODUCED CONFUSIONAND UNCERTAINTY INTO THE MAR-KETPLACE,., .............................................8

A. The Conflict Between the Second andNinth Circuits has Created Confusionand Uncertainty That Will Have aChilling Effect on the Exercise ofTermination Rights .............................8

B. The Second Circuit Decision Provides aRoadmap to Undermine the Exercise ofArtists’ Valuable Termination Rights ... 9

ii

TABLE OF CONTENTS - Continued

Page

C. The Conflict Between the Second andNinth Circuits Warrants This Court’sGranting of Certiorari ...........................10

CONCLUSION .....................................................11

111

TABLE OF AUTHORITIES

Page

STATUTES

Copyright Act ........................................................1, 8, 9

Copyright Act of 1976 ...................................................7

17 U.S.C,. §203 ............................................................10

17 U.S.C. §304(c) ........................................................10

17 U.S.C,. §304(c)(5) ......................................................8

26 U.S.C. §501(c)(6) ......................................................3

RULES

Sup. Ct. Rule 37.2(a) ....................................................1

Blank Page

INTEREST OF AMICI CURIAE1

The nine amici curiae represent a broad coalitionof organizations that administer or protect the intel-lectual property interests of tens of thousands ofprofessional creators and artists ("artists") engaged innearly every form of artistic expression protected bythe Copyright Act. The artists represented here -from the recording artists and songwriters to news-paper photographers to the book authors - create andown works of art entitled to protection under theCopyright Act, including the termination rights atissue here. These artists are currently confrontedwith untenable uncertainty and the threat of burden-some litigation as a result of the conflict between theSecond and Ninth Circuits.

Visual Artists

Visual artists work in many different media,including photography, illustration, animation, andthe graphic arts. The work of these individuals in-cludes such iconic images as Garth Williams’ Char-lotte in Charlotte’s Web and Richard Avedon’sphotographic portraits of Marilyn Monroe and other

1 Pur,’~uant to Rule 37.2(a) of the Rules of this Court,counsel of record for all parties received notice at least ten daysprior to the due date of this brief of amici curiae’s intention tofile this brief. Each party has consented to the filing of this brief.No counsel for a party authored this brief in whole or in partand no party made a monetary contribution to its preparation orsubmission.

2

celebrities. Often, visual artists work as independentcontractors, placing them in a vulnerable positionwhen negotiating with more powerful entities. Thefollowing three amici represent the interests of tensof thousands of visual artists.

The Graphic Artists Guild ("GAG") in the courseof its forty-year history has advocated for the rights ofgraphic artists working in such diverse fields asindustrial and web design, illustration, animation,and art direction. As independent contractors, manyof GAG’s 1,200 members are compelled to acceptterms to their economic disadvantage. For thesemembers, the right to terminate represents the onlyopportunity to truly benefit from their labor. Thedecision below threatens that right.

For over sixty years, amicus American Society ofMedia Photographers ("ASMP’), a non-profit profes-sional trade association, has represented the interestsof over 7,500 professional photographers principallyengaged in taking photographs intended primarily forpublication. ASMP has advocated for the advance-ment and protection of the intellectual propertyrights of its freelance members and has worked toeducate freelance photographers on better businesspractices, among numerous other things. Its membershave included such acclaimed photographers as AnselAdams, Richard Avedon, Philippe Halsman, ArnoldNewman, Jay Maisel, Victor Skrebneski, JoyceTenneson, Pete Turner, and Eric Meola.

3

The National Press Photographers Association("NPPA") is a 501(c)(6) non-profit organization dedi-cated to the advancement of photojournalism in itscreation, editing and distribution. NPPA’s almost8,000 members include television and still photogra-phers, editors, students and representatives of busi-nesses that serve the photojournalism industry. Sinceits founding in 1946, the NPPA has vigorously pro-moted the constitutional rights of journalists as wellas freedom of the press in all its forms, especially asit relates to photojournalism. Over the past 65 yearsNPPA members have produced many iconic images,some of which have won Pulitzer Prizes.

Musicians and Songwriters

The following three amici comprise over 75,000individuals working in all aspects of the music indus-try. In addition to composing works for public perfor-mance, these artists also create music and recordingsfor a diverse range of uses, including motion pictures,television, and other media.

For over seventy-five years, the SongwritersGuild of America ("SGA") has advocated exclusivelyfor the rights of songwriters. With approximately fivethousand (5,000) members, including current song-writers and the estates of deceased members, theSGA is the oldest and largest organization in theworld run solely by and for songwriters and theirheirs. SGA assists its members in many ways, includ-ing provi.ding model contracts, copyright renewal andtermination filing services, and royalty collection and

4

auditing programs. SGA also advocates on behalf ofits members on issues of national importance in Con-gress, in the courts, and through executive agencies anddepartments. Its members include world-renownedliving songwriters and the estates of deceased song-writers including Ervin Drake ("It Was A Very GoodYear"), George David Weiss ("What A Wonderful World"),Ray Charles ("What I Say"), Chuck Berry ("Johnny B.Goode"), Harold Arlen and E.Y. Harburg ("Over theRainbow"), and Johnny Mercer ("Moon River").

The Future of Music Coalition ("FMC") wasfounded in 2000 as a non-membership organizationby a coalition of musicians, artist advocates, technol-ogists, and legal experts. FMC seeks to providemusicians with a voice in the issues that affect theirlivelihood. FMC’s work is rooted in the real-worldexperiences and ambitions of its member musicianswhose perspective is often overlooked in policy de-bates. FMC views the ability to terminate previouslyassigned copyrights as a fundamental right for thecreators of intellectual property and their statutoryheirs and supports petitioners’ effort to seek certiorariso that this Court may clarify the law.

Amicus American Federation of Musicians of theUnited States and Canada ("AFM") has over 70,000professional musician members, many of whom aresongwriters and recording artists who create songsand perform on American sound recordings, and whoare entitled to copyright protection, including termi-nation rights. Founded in 1896, the AFM, amongother activities, works to protect the intellectualproperty interests of its members.

5

Authors and Illustrators

The tens of thousands of writers and illustratorsrepresented by the following three amici includeauthors across all genres, including historians, biog-raphers, and children’s book writers, and media,including magazines, newspapers, and books. Theseartists are frequently required to enter into below-market agreements for their work. The terminationrights established by Congress provide these artistswith the opportunity to realize the true commercialvalue of their intellectual property. Those rights arejeopardized by the Second Circuit’s decision below.

Amicus The Authors Guild, Inc. (the "Guild") isthe largest society of published authors in the UnitedStates, representing more than 8,500 book authorsand freelance writers, more than 8,250 of whom havepublislhed books. Its members represent the broadsweep of American authorship, including literary andgenre fiction, nonfiction, trade, academic, and chil-dren’s book authors, textbook authors, freelancejournalists and poets. Since the day it was founded in1912, the Guild has been the leading writer’s advo-cate for fair compensation, effective copyright protec-tion, and freedom of expression.

A group of Los Angeles-based children’s writersformed the Society of Children’s Book Writers andIllustrators in 1971 and it remains the only profes-sional organization representing the interests ofindividuals writing and illustrating for children andyoung adults in children’s literature, magazines, film,

television, and other media. Its nearly 22,000 mem-bers include published and non-published authorsand illustrators.

The Artists Rights Coalition ("ARC") seeks tosupport artists in their efforts to protect their intel-lectual property rights. Working primarily throughthe courts, the ARC assists artists in navigating thejudicial system in their litigation efforts and offersgrants to assist them as they strive to protect theircopyrights. It also advocates on broad national issuessurrounding intellectual property rights.

SUMMARY OF ARGUMENT

The membership of the nine amici include thou-sands of individual creators and artists who hold, orat one point held, termination rights in their works.In establishing the right of termination, Congresssought to provide artists and their statutory heirswith the opportunity to recapture the rights to theirworks after a more accurate commercial value hasbeen established. Congress recognized that artists aregenerally in a poor negotiating position at the outsetof their careers, and therefore created the termina-tion right through which it sought to correct thatimbalance. Absent this Court’s intervention, thebroad coalition of artists represented in this brief willsuffer substantial and, in some cases, permanentdamage.

7

The irreconcilable split between the Second andthe Ninth Circuits has upset the balance that Con-gress sought to create with the creation of termina-tion rights in two ways. First, the uncertaintysurrounding what constitutes an "agreement to thecontrary" creates a chilling effect that will discourageartists from exercising their termination rights.Because termination rights are available for only abrief window of time, these rights could be perma-nently lost. Second, the decision of the Second Circuitprovides a roadmap that allows grantees to manipu-late the process and extinguish the terminationrights Congress conveyed in the Copyright Act of1976. Unless this Court grants certiorari, the SecondCircuir~ offers grantees a forum to successfully arguethat modifications to existing agreements are actuallynew grants of rights that extinguish terminationrights.

8

ARGUMENT

I. THIS COURT SHOULD GRANT REVIEWTO RESOLVE AN IRRECONCILABLESPLIT BETWEEN THE SECOND ANDNINTH CIRCUITS ON WHAT CONSTI-TUTES AN "AGREEMENT TO THE CON-TRARY" UNDER SECTION 304(c)(5) OFTHE COPYRIGHT ACT THAT HAS IN-TRODUCED CONFUSION AND UNCER-TAINTY INTO THE MARKETPLACE

A. The Conflict Between the Second andNinth Circuits has Created Confusionand Uncertainty That Will Have aChilling Effect on the Exercise of Ter-mination Rights

The hopelessly fractured jurisprudence on whatwill constitute an "agreement to the contrary" underthe Copyright Act has injected uncertainty and confu-sion among independent artists represented by amicion this brief. An agreement that would be set aside as"to the contrary" in the Ninth Circuit would operateto extinguish termination rights in the Second Cir-cuit. As a result of this conflict, an artist’s properexercise of termination rights may depend more onthe adjudicating forum than on the exercise of appro-priate formalities.

The irreconcilable conflict between the SecondCircuit and the Ninth Circuit will engender a race tothe courthouse, with grantees seeking out the safeconfines of the Second Circuit and artists looking forrelief in the Ninth Circuit. Very few of the creators,

9

artists, and statutory heirs represented by amici havethe financial ability to maintain litigation against thedeep-pocketed entities they do business with. Facingthe potential for costly litigation, these artists mayinstead choose to abandon their termination. As aresult, the rights of hundreds, perhaps thousands, ofcreators could be lost each year without any meaning-ful judicial review.

B. The Second Circuit Decision Providesa Roadmap to Undermine the Exerciseof Artists’ Valuable Termination Rights

In enacting the termination provisions of theCopyright Act, Congress intended to give artistsleverage in negotiating for compensation for the useof their artistic endeavors. For nearly all of the artistsrepresented by amici, this represents the first timethey can negotiate on an equal footing. The SecondCircuit decision, however, restores the imbalanceCongress sought to remedy and gives grantees theupper ihand once again.

The Second Circuit decision sanctions attemptsby grantees to avoid the effects of termination by con-tracting around those rights. Opportunistic grantees,by making a slight adjustment to existing terms couldeasily argue in the Second Circuit that a new grant ofrights has occurred and that any prior terminationrights ihave been extinguished.

Indeed, many artists and statutory heirs maycome to realize that they have already unintentionally

10

and unwittingly bargained away their terminationrights in the Second Circuit. Upon exercising theirtermination rights, they could suddenly face litigationthat they are ill-equipped to maintain, particularlyagainst the powerful entities with which they dobusiness.

C. The Conflict Between the Second andNinth Circuits Warrants This Court’sGranting of Certiorari

Sitting at the two epicenters of the entertain-ment and publishing industries, the Second andNinth Circuits are widely recognized as the leadingcourts in the area of copyright law. There is littlebenefit to be derived from waiting for further devel-opment in this aspect of the law when the two courtsthat will see the vast majority of cases on this issuehave spoken. Moreover, granting certiorari in thiscase will bring much needed national unity to theinterpretation of what constitutes an "agreement tothe contrary" pursuant to 17 U.S.C. §§ 203,304(c).

The substantial harm to amici and the creators,artists, and estates they represent vastly outweighsthe small likelihood that the law would be advancedfurther in the remaining circuit courts. Artists’rights will be determined not by the statutory frame-work enacted by Congress, but by the fortuity of theforum in which they are decided. Moreover, the merethreat of litigation may force artists to abandon theirtermination rights altogether. Since those rights exist

11

for only a limited time, those rights would be lost tothe artist and their heirs forever.

CONCLUSION

For the reasons set forth above and in peti-tioners’ brief, this Court should grant the petitionfor a writ of certiorari.

Respectfully submitted,

ERACH F. SCREWVALACounsel of Record

Graphic Artists GuildAmerican Society of Media PhotographersNational Press Photographers Association

Songwriters Guild of AmericaFuture of Music Coalition

American Federation of MusiciansSociety of Children’s Book Writers and Illustrators

The Authors GuildThe Artist Rights Coalition

SCREWVALA LLC244 Fifth Avenue, Suite #E-241

New York, New York 10001

Blank Page